Will Same Sex Marriage Be Won or Lost in the Courts?

>Gay rights advocates have no choice but to praise Judge Walker's decision in Perry v. Schwarzenegger striking down a ban on same sex marriage as utterly irrational, but I doubt I am alone in worrying about its unintended long and short term consequences. That the decision may be reversed on appeal is perhaps the least of my concerns. In fact, a reversal could conceivably contribute to popular acceptance of equal marriage, in the long run. It would help undermine demands for a federal constitutional amendment banning same sex marriage, avoid intensifying right wing fury over judicial activism (when practiced by relatively liberal judges), and return the marriage battle to voters and legislators where (I'm confident) gay rights advocates would eventually prevail.

To secure equal marriage, and equal rights in general, we need a win at the ballot box, which has so far eluded us. (On that point, advocates for and against equality often agree, which is partly why initiatives like California's Proposition 8 are so fiercely fought.) In Maine, we came close, but suffered a disappointing loss, when a referendum repealing a state gay marriage law was approved by a 6 point margin. Prop 8, establishing a state constitutional amendment banning same sex marriage, prevailed by a similar margin. In Massachusetts, we won at least a representative popular vote when the legislature defeated an effort to place a constitutional amendment banning same sex marriage on the ballot.

Gay couples have been legally married in Massachusetts, to what appears to be increasing public acceptance (or indifference) since 2004. Gay marriage did not damage the social fabric (or undermine heterosexual marriage,) as opponents hysterically predicted, and public debate moved on (to wind farms, gambling, sales taxes, and, most recently, a media driven fracas over Senator Kerry's yacht.)

It is worth stressing, of course, that this victory in Massachusetts began with a landmark decision by the state's Supreme Judicial Court affirming the right of gay people to marry under the state constitution (a decision for which retiring Chief Justice Margaret Marshall has been justly celebrated.) The battle for racial equality (under law, if not custom) was won partly in the courts beginning with Brown v Board of Education and including, a decade later, Loving v Virginia, the Supreme Court decision that struck down bans on interracial marriage. So I'm not denying, much less decrying, the role of the judiciary in securing civil rights, by enforcing constitutional guarantees of equality.

But, the Supreme Court's ruling invalidating inter-racial marriage bans under the federal constitution followed years of progress by the states (beginning with a 1948 decision by the California courts striking down a state ban.) We have not progressed nearly as far in legalizing gay marriage. Indeed, while the Supreme Court has confirmed the fundamental rights of gay people in two crucial cases, it has never held that sexual orientation is a protected category, like race, sex, ethnicity, or religion. In other words, it has not applied the same high standards of review to cases involving discrimination against gay people that it applies to cases involving racial, sexual, or religious discrimination.

In Lawrence v Texas, the Court held that state laws criminalizing consensual gay sex violated due process guarantees of liberty. In Romer v Evans, the Court struck down an amendment to the Colorado constitution barring localities from passing gay rights laws, ruling that the amendment was not rationally related to a legitimate state purpose. This "rational relation" test is the most permissive standard of review in cases challenging the constitutionality of state or federal laws; it's a standard reflecting judicial deference to legislative decision-making, pursuant to which laws are usually upheld - but not in recent gay rights cases. In striking down Prop 8, Judge Walker invoked this lower (or lowest) standard of review, as did Judge Tauro, when he struck down parts of the federal Defense of Marriage Act.

Why is this relevant? The failure to recognize gay people as a protected class, subjecting discrimination against them to strict standards of judicial review, the repeated invalidation of anti-gay laws as simply irrational, enhances the claim that these cases represent abuses of judicial discretion, that judges are substituting their values (and findings of fact) for the values and findings of legislators. I am not endorsing this argument (and I agree that discriminating on the basis of sexual orientation is simply irrational.) I am simply pointing out that the judicial activism argument may not be easily dismissed.

Finally, as I am hardly the first to observe, the war over abortion rights has dramatized the dangers of relying on the judiciary to take the lead in a controversial rights battle. We will never know if abortion rights would be more secure today had the Court declined to find a constitutional right to obtain an abortion (as it has declined to declare a constitutional right to die, leaving the matter to the states.) But we do know that the Supreme Court that once granted abortion rights, in a relatively liberal political climate, now appears to be in the process of taking them away.

I'm not criticizing or regretting Roe v Wade. I remember my own enormous sense of relief and vindication the day the decision came down and, most of all, I remember its practical consequences for women who no longer had to seek out unsafe, illegal abortions. I'm not questioning the decision to challenge Prop 8 in federal court with any sense of certainty; but, from a political perspective, I do have a sense of foreboding.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.